Blue Man Vegas, LLC v. NLRB - 381 U.S. App. D.C. 362, 529 F.3d 417 (2008)

Rule:

A bargaining unit is truly inappropriate if, for example, there is no legitimate basis upon which to exclude certain employees from it. That the excluded employees share a community of interest with the included employees does not, however, mean there may be no legitimate basis upon which to exclude them; that follows apodictically from the proposition that there may be more than one appropriate bargaining unit. If, however, the excluded employees share an overwhelming community of interest with the included employees, then there is no legitimate basis upon which to exclude them from the bargaining unit. 

Facts:

Blue Man Vegas, LLC (BMV) petitions for review of the National Labor Relations Board's decision that it engaged in unfair labor practices by refusing to bargain with the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists & Allied Crafts of the United States, Its Territories & Canada, AFL-CIO (the Union), and electing to represent certain employees. BMV argues the Board erred in holding the bargaining unit proposed by the Union was appropriate. BMV argued that (1) the Board applied the wrong standard to determine whether the proposed unit was appropriate, (2) the unit determination was not supported by substantial evidence, and (3) the exclusion of musical instrument technicians (MITs) from the proposed unit created a disfavored residual unit. 

Issue:

Did the Board err in ruling that the bargaining unit proposed by the Union was appropriate?

Answer:

No.

Conclusion:

The court concluded that the Board applied the correct legal standard to determine whether the proposed bargaining unit was appropriate. The Board correctly applied the overwhelming-community-of-interest standard; it did not presume the union's proposed unit was valid. The Board's determination that the MITs could be excluded from the bargaining unit because they did not share an overwhelming community of interest with stage crew employees included in the unit was supported by substantial evidence and did not conflict with precedent or the Board's residual unit policy. The Board recognized the MITs differed from the employees in other crews in ways unique to the MITs, namely, in terms of supervision, form of payment, and sign-in sheets.